Audit, Compliance and Risk Blog

On April 9, a majority of the Ninth Circuit Court of Appeals ruled that an employer cannot rely on newly-hired employees’ salary histories to justify paying men more than women for the same work. Although the federal Equal Pay Act of 1963 allows disparities based on factors “other than sex,” the court found that salary histories are sufficiently tainted with sex discrimination to bar such reliance. Since it’s taken over 50 years for an appeals court to reach this conclusion, it’s worth exploring the court’s reasoning.

The Securities and Exchange Commission (SEC) has just published Interpretive Guidance to “assist” public companies with evaluation and reporting of their cybersecurity risks. This Guidance expands similar SEC guidance issued in 2011, reflecting the growing importance of the issue and highly-publicized cybersecurity breaches during the intervening years. The following discussion summarizes the new Guidance, and provides context.

On February 12, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2019 (October 1, 2018 through September 30, 2019), subtitled “An American Budget”. The proposal included a 34% cut in the Environmental Protection Agency (EPA) budget, from $8.2 billion in FY 2016 (stable in FY 2017 and FY 2018 under a Continuing Budget Resolutions rather than a fully-new federal budget), to $5.4 billion for FY 2019, with corresponding personnel cuts from 15,408 full-time-equivalent employees (FTE) to 12,250. (these are numbers for EPA in the government-wide budget from the Office of Management and Budget (OMB); the stand-alone budget document on EPA’s website cites $6.1 billion).

The Environmental Protection Agency (EPA) has published its second Annual Plan for Chemical Risk Evaluations. These evaluation workplans are required by the 2016 Lautenberg Act amendments to the Toxic Substances Control Act (TSCA), as an expansion of EPA’s long-criticized efforts to evaluate existing chemicals for potential health and safety hazards. This new Annual Plan updates EPA’s efforts since 2016, and continues to formalize procedures.

The US Environmental Protection Agency (EPA) requires selected facilities to file Toxic Release Inventory (TRI) reports on either Form R or Form A, electronically to EPA and their state every July 1. These TRI reports are mandated by Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA; also known as SARA Title III since it was enacted as part of the Superfund Amendments and Reauthorization Act of 1986). (I summarized TRI reporting requirements here).

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. Controls include permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” Since 1995, EPA policy has been that every emission source that met major source criteria at the time a MACT became effective is “once in, always in” and cannot requalify as a less-regulated area source even if it accepts legally binding controls that reduce its “potential to emit.” On January 25, 2018 EPA reversed that decades-old policy.

Since enacting AB 32 in 2006, California has pursued aggressive policies to reduce statewide greenhouse gas (GHG) emissions. Primary responsibilities are assigned to the California Air Resources Board (ARB), although other state agencies implement complementary policies within their areas of special jurisdiction. In addition to emissions control regulations, state law assigns ARB to develop a Scoping Plan that identifies the state’s strategic goals, and compiles the many tactical approaches through individual regulatory and incentive programs. ARB issued the first Scoping Plan in 2008, with an update in 2014 and the latest update in 2017. The rest of this note describes changes in the latest Scoping Plan to reflect the state’s ever-expanding GHG reduction goals.

The U.S. Environmental Protection Agency (EPA) has been working for nearly six years to meet a legislative mandate to develop and implement an electronic manifest (“e-manifest”) system to replace the decades-old paper-based system. The Hazardous Waste Electronic Establishment Act of 2012 amended the Resource Conservation and Recovery Act (RCRA) and gave EPA three years, but it’s taken longer. EPA adopted e-manifest rules in 2014, but put them on hold until it could establish a suitable information management system (I wrote about these rules here). In January 2018 EPA published final e-manifest rules, including fees, and set June 30, 2018 as the initial compliance deadline.

One of the longest running sub-national greenhouse gas (GHG) control efforts in the U.S. has been the Regional Greenhouse Gas Initiative (RGGI) program. RGGI provides a cap-and-trade program covering GHG emissions from targeted fossil fuel power plants in participating northeastern states. The program t has just been revised and extended through 2030.

Most employers promulgate a wide range of employee-related policies and work rules, which some compile in employment manuals. All too frequently, these policies and work rules contain ambiguities that employees try to parse to understand what rules really apply, and why. What if employees interpret – or might reasonably interpret – an ambiguity in a way that appears to restrict employees’ rights to organize themselves? Do these provisions violate the National Labor Relations Act (NLRA)?